Supreme Court of India (Division Bench (DB)- Two Judge)

Writ Petition (Civil), 521 of 2008, Judgment Date: Jun 30, 2016


                                                                  Reportable



                        IN THE SUPREME COURT OF INDIA

                    CIVIL ORIGINAL/APPELLATE JURISDICTION

                    WRIT PETITION (CIVIL)  No.521 OF 2008


Rajeev Kumar Gupta & Others                          …          Petitioners

                                     Versus

Union of India & Others                            …            Respondents

                                    WITH

                        CIVIL APPEAL NO. 5389 OF 2016

                 (Arising out of SLP (Civil) No.244 of 2016)



                               J U D G M E N T

Chelameswar, J.

1.    Leave granted in SLP (Civil) No.244 of 2016.



2.    The petitioners are employed with Prasar Bharati Corporation of  India
(hereinafter,  “Prasar  Bharati”),  a  statutory  corporation  brought  into
existence by the Prasar Bharati (Broadcasting  Corporation  of  India)  Act,
1990 (hereinafter “the 1990  Act”).    The  petitioners  are  ‘persons  with
disability’ (hereinafter, “PWD”)  as  defined  under  Section  2(t)  of  the
Persons with Disabilities (Equal Opportunities,  Protection  of  Rights  and
Full Participation) Act, 1995 (hereinafter “the 1995 Act”). They filed  this
writ petition aggrieved by two office memoranda  No.36035/16/91-Estt.  (SCT)
dated  18.02.1997   and   No.36035/3/2004-Estt.   (RES)   dated   29.12.2005
(hereinafter impugned memorandum  I  and  II  respectively)  issued  by  the
Department of Personnel and Training, Government of India. The  petitioners’
grievance is that the impugned  memoranda  deprive  them  of  the  statutory
benefit of reservation under the 1995 Act w.r.t. Group A and Group  B  posts
in Prasar Bharati.



3.    Posts in Prasar Bharati are classified into four  groups  –  A  to  D.
Each group consists of a number of classes of posts and in each class  there
are a number of posts.  Certain posts were identified by the  Government  of
India   vide   notification   No.   16-70/2004-DD.III    dated    18.01.2007
(hereinafter, “NOTIFICATION”) as posts suitable for  being  filled  up  with
PWD (hereinafter “IDENTIFIED POSTS”); an exercise  in  compliance  with  the
mandate under Section 32 of the 1995  Act[1].   After  such  identification,
the ‘appropriate Government’[2] is mandated under Section 33[3]  to  reserve
not less than three per cent of IDENTIFIED POSTS in favour of PWD.



4.    Under the  regulations  framed  under  the  1990  Act,  various  posts
(falling in groups A to D) in Prasar Bharati are to be filled  up  by  three
different modes i.e. direct recruitment, promotion and some posts partly  by
direct recruitment and partly by promotion.



5.    Memorandum II provides for reservation in favour of PWD to the  extent
of three per cent in all the IDENTIFIED POSTS in Prasar Bharati, when  these
are filled up by direct recruitment.  However, it  provides  for  three  per
cent  reservation  in  IDENTIFIED  POSTS  falling  in  Groups  ‘C’  and  ‘D’
irrespective of the mode of recruitment i.e. whether by  direct  recruitment
or by promotion.  As a consequence, the statutory benefit of three per  cent
reservation in favour of PWD  is  denied  insofar  as  IDENTIFIED  POSTS  in
Groups ‘A’  and  ‘B’  are  concerned,  since  these  posts,  under  relevant
regulations of Prasar Bharati  are  to  be  filled  up  exclusively  through
direct recruitment.



6.    The crux of the issue before us is legality of denial by the  impugned
memoranda of  the  statutory  benefit  of  three  per  cent  reservation  in
IDENTIFIED POSTS falling in Groups A and B.   Such denial,  the  petitioners
contend, violates the State’s obligation under Sections 32  and  33  of  the
1995 Act and subverts of the object of the said Act  enacted  by  Parliament
inter alia to secure opportunities for full participation of PWD in  matters
of employment.



7.    It is relevant to notice the history and background  of  the  impugned
memoranda. After enactment  of  the  1995  Act,  impugned  memorandum-I  was
issued  purporting  to  extend  the  benefit  of  reservation   to   certain
IDENTIFIED  POSTS  falling  in  Groups  A  and  B,  which   under   relevant
regulations  of  Prasar  Bharati  are  to  be  filled  only  through  direct
recruitment.   This memorandum was followed by several  others  (examination
of each of them is  not  necessary  for  our  present  purpose)  leading  to
significant confusion regarding the intendment of the  Government  of  India
with respect to reservation to PWD candidates. The  impugned  memorandum  II
was issued to  clarify  government’s  understanding  of  the  problem.   The
legality (correctness of the  government’s  understanding  of  the  law)  of
impugned memorandum-II is the issue for our consideration.



8.    The petitioners argued,

 (i)        A large number of IDENTIFIED POSTS in Groups A and B are  filled
only through promotion. Because of the impugned memoranda,  the  benefit  of
reservation under Section 33 of the 1995 Act is denied w.r.t.  those  posts.
Petitioners therefore lose out on a significant  amount  of  opportunity  at
the  upper  end  of  the  organizational  hierarchy.   It  cannot   be   the
respondent’s case  that  the  petitioners  are  unfit  by  virtue  of  their
disability to perform the functions  of  office  in  the  IDENTIFIED  POSTS.
Such posts are already identified to be suitable to be filled up  with  PWD.
Classification among the PWD on the basis of  the  mode  of  recruitment  is
discriminatory and the same has  no  nexus  to  the  objects  sought  to  be
achieved either by the 1995 Act or the recruitment.    Government  of  India
has created an arbitrary and irrational distinction by excluding  IDENTIFIED
POSTS in Groups A and B from the benefit of three per cent reservation.



(ii)   That the embargo on reservation  in  promotions  laid  down  by  this
court in Indra Sawhney & Others v. Union of India & Others,  1992  Supp  (3)
SCC 215 (hereinafter, referred to  as  the  ‘Indra  Sawhney  case’)  is  not
applicable to PWD.



9.    The respondents argued[4]

(i)   that the mandate of Section 33 of the 1995 Act applies only  when  the
identified posts are sought to be filled up by direct recruitment.  Impugned
memorandum-II only contains a policy decision of the Government of India  by
which reservation is granted to Group C and Group D  posts  even  when  they
are sought to be filled up by  the  mode  of  promotion.  Since  the  policy
decision restricted the reservation in promotion to identified Group  C  and
Group D posts, the petitioners  have  no  right  to  demand  reservation  in
promotion to identified Group A and Group B posts.



(ii)  The respondents further argued that Indra Sawhney case  clearly  ruled
that reservations be  confined  to  recruitment  at  the  initial  level  of
recruitment into government service and not  at  the  stage  of  promotions.
Providing  for  reservation  in  higher  level  posts  is   constitutionally
impermissible.  The respondents, therefore, argued that in light of the  law
laid down in  Indra  Sawhney,  it  is  constitutionally  impermissible  that
petitioners to be  given  three  per  cent  reservation  in  promotions  for
identified Group A and Group B posts.



10.   Whether any post under the State is to be reserved  for  being  filled
up  exclusively  by  some  persons  belonging   to   any   “constitutionally
deserving” class of persons or otherwise is a matter  of  policy  choice  of
the State.  Such a policy is either laid down  by  a  statute  or  executive
orders. Various factors are to be taken into consideration for  framing  any
policy such as  the nature  of  responsibilities  which  a  particular  post
carries, the number of posts available in that class and the  representation
already existing in that class of posts for persons of the  class  to  which
reservation is sought to be provided and myriad other things.



11.   But such factors  ought  to  be  germane  to  purposes  sought  to  be
achieved by the policy apart from being  relevant  in  the  context  of  the
scheme of Articles 14 and 16 of the Constitution.  The  same  principles  of
law apply even to the question, as to the mode of filling up of any post  or
class of posts.

12.   The policy of the State w.r.t. the issue on hand is regulated  by  the
1995 Act. It authorises (under Section 32)  the  appropriate  Government  to
identify the posts suitable to be filled up by PWD. The Government of  India
has exercised the power and identified the posts vide the  NOTIFICATON.  The
NOTIFICATION includes some of the posts in Group A and Group B.[5]



13.   For some of these IDENTIFIED POSTS in Group A and Group  B,  the  mode
of recruitment is only through promotions.[6]  The  purpose  underlying  the
statutory exercise of identification under Section 32 of the 1995 Act  would
be  negated  if  reservation  is  denied  to  those  IDENTIFIED   POSTS   by
stipulating that either all or some of such posts are to be filled  up  only
through the mode of promotion.  It is demonstrated before us that PWD  as  a
class are disentitled to some of the IDENTIFIED POSTS in Groups A and  Group
B because of the impugned memoranda  and  the  relevant  regulations,  under
which the only mode of appointment to  those  IDENTIFIED  POSTS  is  through
promotion. Once posts are identified under Section 32,  the  purpose  behind
such  identification  cannot  be  frustrated  by  prescribing  a   mode   of
recruitment which results in denial of statutory reservation. It would be  a
device to defraud PWD of the statutory benefit under Section 33 of the  1995
Act.



14.   We now examine the applicability of the prohibition on reservation  in
promotions  as  propounded  by  Indra  Sawhney.  Prior  to  Indra   Sawhney,
reservation in promotions were permitted under law as  interpreted  by  this
Court in General Manager, Southern Railway  &  Another  v.  Rangachari,  AIR
1962 SC 36. Indra Sawhney specifically overruled Rangachari  to  the  extent
that reservations in promotions were held  in  Rangachari  to  be  permitted
under  Article  16(4)  of  the  Constitution.   Indra  Sawhney  specifically
addressed   the   question   whether   reservations could  be  permitted  in
matters of promotion under Article  16(4)[7].   The  majority  held[8]  that
reservations  in  promotion  are  not  permitted  under  our  constitutional
scheme.

15.   The respondent  argued  that  the  answer  to  Q.7  in  Indra  Sawhney
squarely covers the situation on  hand  and  the  reasons  outlined  by  the
majority opinion in Indra Sawhney  at  para  828  must  also  apply  to  bar
reservation in promotions to IDENTIFIED POSTS of Group A and Group B.



16.   We do not agree with the respondent’s submission.  The  Indra  Sawhney
ruling arose in the context of reservations in favour  of  backward  classes
of citizens falling within the sweep of Article 16(4).

17.   Backward classes contemplated under Article  16(4)  are  the  socially
and educationally backward classes of  citizens.  In  Devadasan[9],  it  was
held by this Court that Article 16(4)  is  an  exception  to  the  principle
contained in Article 16(1).  However, Subba Rao, J., in his  dissent  opined
that Article 16(4) is not an exception to Article 16(1) but an emphatic  way
of expressing the principle inherent  in  Article  16(1).   This  dissenting
opinion later found approval in the majority decision in State of Kerala  v.
N.M. Thomas, (1976) 2 SCC 310.  Finally, in Indra Sawhney, a  9-judge  Bench
by majority (speaking through  Jeevan  Reddy,  J.)  confirmed  that  Article
16(4) is not an exception to  the  Rule  in  Article  16(1)  but  it  is  an
“instance of (such) classification”[10]

18.   The  principle  is  that  the  State  shall  not  discriminate  (which
normally includes preference) on  the  basis  of  any  one  of  the  factors
mentioned in  Article  16(1).  Though  under  the  doctrine  of  “reasonable
classification”, it has always been held that State can identify classes  of
people who have distinct characteristics or  disadvantages  and  treat  them
separately under  law.   Having  regard  to  the  history,  the  social  and
demographic context of our  nation,  the  Constitution  framers  thought  it
appropriate to enable the State under Article  16(4)  to  identify  citizens
for preferential treatment for the purpose of employment under the State.

19.   This Court in Indra Sawhney was dealing with the action of  the  State
in providing reservation in employment under the State  to  various  classes
of citizens, identified by the State to be backward  classes.   The  process
of such identification and the nature and extent of reservations that  could
be provided under Article 16(4) were the main issues before this  Court.  It
is in this context, this Court held  that  reservation  in  the  context  of
promotions  to  higher  posts   under   the   State   are   constitutionally
impermissible.

20.   To remove the basis of the rule  propounded  in  Indra  Sawhney  case,
Parliament enacted the Constitution (Seventy-Seventh Amendment)  Act,  1995.
By inserting Article 16(4A), an exception is created in favour  of  citizens
belonging to the Scheduled Castes and the Scheduled Tribes,  from  the  rule
laid down in Indra Sawhney.



21.   The principle laid down in Indra Sawhney is applicable only  when  the
State seeks to give preferential  treatment  in  the  matter  of  employment
under State to certain classes of  citizens  identified  to  be  a  backward
class.   Article  16(4)  does  not  disable   the   State   from   providing
differential treatment (reservations) to other  classes  of  citizens  under
Article 16(1)[11] if they otherwise deserve  such  treatment.  However,  for
creating such preferential treatment under law, consistent with the  mandate
of Article 16(1), the State cannot choose any one of  the  factors  such  as
caste, religion etc. mentioned in Article 16(1) as  the  basis.   The  basis
for providing reservation for PWD is physical disability and not any of  the
criteria  forbidden  under  Article  16(1).  Therefore,  the  rule   of   no
reservation in promotions as laid down in  Indra  Sawhney  has  clearly  and
normatively no application to the PWD.



22.   The 1995 Act was enacted to  fulfill  India’s  obligations  under  the
‘Proclamation on the Full Participation and  Equality  of  the  People  with
Disabilities in the Asia and Pacific Region’. The objective behind the  1995
Act is to integrate PWD into  the  society  and  to  ensure  their  economic
progress.[12]  The  intent  is  to  turn  PWD  into  ‘agents  of  their  own
destiny’.[13]   PWD are not and cannot  be  equated  with  backward  classes
contemplated under Article 16(4).  May be, certain  factors  are  common  to
both backward classes and  PWD  such  as  social  attitudes  and  historical
neglect etc.



23.   It is disheartening to note  that  (admittedly)  low  numbers  of  PWD
(much below three per cent) are in government employment  long  years  after
the 1995 Act. Barriers to their entry must,  therefore,  be  scrutinized  by
rigorous standards within the legal framework of the 1995 Act.



24.   A combined reading of Sections 32 and 33 of the 1995 Act explicates  a
fine and designed balance between requirements  of  administration  and  the
imperative to provide greater opportunities to PWD. Therefore,  as  detailed
in the first  part  of  our  analysis,  the  identification  exercise  under
Section 32 is crucial. Once a post is identified, it means  that  a  PWD  is
fully capable of discharging the functions associated  with  the  identified
post. Once found to be so  capable,  reservation  under  Section  33  to  an
extent of not less than three  per  cent  must  follow.  Once  the  post  is
identified, it must  be  reserved  for  PWD  irrespective  of  the  mode  of
recruitment adopted by the State for filling up of the said post.



25.   In light of the preceding analysis, we declare the impugned  memoranda
as illegal and inconsistent with  the  1995  Act.   We  further  direct  the
Government to extend three percent reservation  to  PWD  in  all  IDENTIFIED
POSTS in Group A and Group B, irrespective of the  mode  of  filling  up  of
such posts.  This writ petition is accordingly allowed.


CIVIL APPEAL NO. 5389 OF 2016

(Arising out of SLP (C) No.244 of 2016)



      In view of our decision in Writ Petition (Civil) No.521 of 2008,  this
Civil Appeal is also disposed of, with no order as to costs.




                                                             ….………………………….J.
                                                          (J. Chelameswar)


                                                             …….……………………….J.
                                                     (Abhay Manohar Sapre)
New Delhi;
June 30, 2016.



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[1]    Section 32-  “Identification of  posts  which  can  be  reserved  for
persons with disabilities.—Appropriate Governments shall-
      (a)   identify posts, in the establishments,  which  can  be  reserved
for the persons with disability;
      (b)   at periodical intervals not exceeding three  years,  review  the
list of posts identified and up-date the list taking into consideration  the
developments in technology.”
      The 1995 Act was enacted on 01.01.1996 pursuant  to  the  Proclamation
on the Full Participation and Equality of the People  with  Disabilities  in
the Asia and Pacific Region adopted in the meeting convened by the  Economic
and Social Commission for Asian and Pacific Region at  Beijing  in  December
1992 to launch the Asian and Pacific Decade of Disabled  Persons  1993-2002.
The proclamation was to ensure “opportunities  for  full  participation  and
equality  for  people  with  disabilities,  especially  in  the  fields   of
rehabilitation,  education  and  employment”.  As  a   signatory   to   this
proclamation, India passed the 1995 Act.
[2]    The term ‘appropriate Government’ is defined under  Section  2(a)  of
the 1995 Act.
[3]    Section 33- “Reservation  of  posts.—  Every  appropriate  Government
shall appoint in every establishment such percentage of vacancies  not  less
than three per cent for persons or  class  of  persons  with  disability  of
which one per cent shall be reserved for persons suffering from-
      (i)   blindness or low vision;
      (ii)  hearing impairment;
      (iii)      locomotor disability or cerebral palsy;
      in the posts identified for such disability:

      Provided that the appropriate Government may,  having  regard  to  the
type of work carried on in any department or establishment, by  notification
subject  to  such  conditions,  if  any,  as  may  be  specified   in   such
notification,  exempt  any  establishment  from  the  provisions   of   this
section.”

      The term “establishment" as referred to in Section 33  is  defined  in
Section 2(k) of the 1995 Act.

[4]    All the respondents adopted the counter affidavit filed on 9.7. 2010
by respondents 4 to 8
[5]     The  following  entries  in  the  identification  notification   are
indicative of this fact- entry nos. 285, 289, 291, 363, 366, 379, 535,  547,
555 and 72 in the Group A list and entry nos. 67, 70 and 120.

[6]    The petitioner annexed replies obtained through RTI at pages  119-122
of the writ petition. A perusal of the annexed  documents  leaves  no  doubt
that there are several identified posts for which the only possible mode  of
recruitment under the regulations of Prasar Bharati is promotion.

      The recruitment mode of  several  posts  such  as  senior  engineering
assistant (Group  B  post),  Assistant  engineer  (Group  B  post),  Station
engineer (Group A post); Superintending engineer (Group A  post)  and  Chief
engineer (Group A post) is through 100%  promotion.  There  are  some  other
posts such Assistant station engineer (Group A post) for  which  recruitment
is 50% by direct recruitment and 50% by promotions.

[7]   See Question No. 7 framed in Hon’ble B.P. Jeevan Reddy, J.’s  Judgment
in Indra Sawhney case;
      “7. Whether clause (4) of Article 16 provides reservation only in  the
matter of initial appointments/direct recruitment  or  does  it  contemplate
and provide for reservations being  made  in  the  matter  of  promotion  as
well?”

[8]    Para 828. “We see no justification  to  multiply  ‘the  risk’,  which
would be the consequence of holding that reservation can  be  provided  even
in the matter of promotion. While  it  is  certainly  just  to  say  that  a
handicap should be given to backward class  of  citizens  at  the  stage  of
initial appointment, it would be a serious and unacceptable inroad into  the
rule of equality of opportunity to  say  that  such  a  handicap  should  be
provided at every stage of promotion throughout  their  career.  That  would
mean creation of a permanent separate category apart from the  mainstream  —
a  vertical  division  of  the  administrative  apparatus.  The  members  of
reserved categories need not have to compete  with  others  but  only  among
themselves. There would be no will to work, compete and  excel  among  them.
Whether they work or not, they tend to think, their  promotion  is  assured.
This in turn is bound to generate  a  feeling  of  despondence  and  ‘heart-
burning’ among open competition members. All this is  bound  to  affect  the
efficiency of administration. Putting the members of backward classes  on  a
fast-track would necessarily result in  leap-frogging  and  the  deleterious
effects of “leap-frogging”  need  no  illustration  at  our  hands.  At  the
initial stage of recruitment reservation can be made in favour  of  backward
class  of  citizens  but  once  they  enter  the  service,   efficiency   of
administration demands that these members too compete with others  and  earn
promotion like all others; no further distinction  can  be  made  thereafter
with reference to their “birth-mark”, as one of the learned Judges  of  this
Court has said in another connection. They are expected to operate on  equal
footing with others. Crutches cannot be provided  throughout  one's  career.
That would not be in the interest of efficiency  of  administration  nor  in
the larger interest of the nation. It is wrong to think that by holding  so,
we are confining the backward class of citizens to the lowest cadres. It  is
well-known that direct recruitment takes place at several higher  levels  of
administration and not merely at the  level  of  Class  IV  and  Class  III.
Direct recruitment is provided even at the  level  of  All  India  Services.
Direct recruitment is provided at the level of District Judges, to  give  an
example nearer home. It may also be noted that during  the  debates  in  the
Constituent Assembly, none referred to reservation in  promotions;  it  does
not appear to have been within their contemplation”.
      Para 829. “It is true that Rangachari [(1962) 2 SCR 586: AIR  1962  SC
36] has been the law for more than 30 years and  that  attempts  to  re-open
the issue were repelled in Karamchari Sangh [(1981) 1  SCC  246,  289:  1981
SCC (L&S) 50: (1981) 2 SCR 185, 234]. It may equally be  true  that  on  the
basis of that decision, reservation may have been provided in the matter  of
promotion in some of the Central and State services  but  we  are  convinced
that the majority opinion in Rangachari [(1962) 2 SCR 586: AIR 1962  SC  36]
to the extent it holds, that Article 16(4) permits reservation even  in  the
matter of promotion, is  not  sustainable  in  principle  and  ought  to  be
departed from. However, taking into consideration all the circumstances,  we
direct that our decision on this question shall operate  only  prospectively
and  shall  not  affect  promotions  already  made,  whether  on  temporary,
officiating  or  regular/permanent  basis.  It  is  further  directed   that
wherever reservations are already provided in the matter of promotion  —  be
it Central Services or State Services, or for  that  matter  services  under
any corporation, authority or body falling under the definition  of  ‘State’
in Article 12 — such reservations shall continue in operation for  a  period
of five years from this day. Within this period, it would  be  open  to  the
appropriate authorities to revise, modify or re-issue the relevant Rules  to
ensure the achievement of the objective of Article 16(4). If  any  authority
thinks that for ensuring  adequate  representation  of  ‘backward  class  of
citizens’ in any service, class or category, it is necessary to provide  for
direct recruitment therein, it shall be open to it do so”.

[9]    T. Devadasan v. Union of India and Anr., AIR 1964 SC 179
[10]    Indra Sawhney’s case.
      Para 741. …  We too believe that Article 16(1) does permit  reasonable
classification for  ensuring  attainment  of  the  equality  of  opportunity
assured by it.  For  assuring  equality  of  opportunity,  it  may  well  be
necessary  in  certain  situations  to  treat  unequally  situated   persons
unequally.   Not    doing    so,    would    perpetuate    and    accentuate
inequality. Article 16(4) is an instance of such classification, put  in  to
place the matter beyond controversy. The "backward class  of  citizens"  are
classified as a separate category  deserving  a  special  treatment  in  the
nature of reservation of appointments/posts in the services  of  the  State.
Accordingly, we hold that Clause  (4)  of Article  16 is  not  exception  to
Clause (1) of Article 16. It is an instance of  classification  implicit  in
and permitted by clause (1).  … It is a provision which must be  read  along
with and in harmony with clause (1). Indeed, even  without  Clause  (4),  it
would  have  been  permissible  for  the  State  to  have  evolved  such   a
classification and made a provision for  reservation  of  appointments/posts
in their favour. Clause (4) merely puts  the  matter  beyond  any  doubt  in
specific terms.

            A Constitution Bench of this Court  in  M.  Nagaraj  &  Ors.  v.
Union of India & Ors. (2006) 8 SCC 212  reiterated  the  position  in  Indra
Sawhney.  See Para 112.
[11]   As per the Indra Sawhney case, Article 16(4) is a subset  of  Article
16(1).
[12]   See Para 3, 4 and 5 of the Proclamation  of  the  Full  Participation
and Equality of the  People  with  Disabilities  in  the  Asia  and  Pacific
Region.
[13]   Id at Para 2.

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